to its loss. The court allowed a recovery against the broker. The article contends that since, if the power had been good, the Bank would have been already bound by law to transfer the consols, there could be no consideration. But is this conclusion justified? When the power came before the agent and the Bank, neither of them knew whether it was good or not, and from their point of view it might turn out either way. Would not a warranty be supported therefore by ample consideration, the detriment incurred by the Bank being the risk that the result of the transfer might be contrary to its interests? Contracts on such consideration are sustained. Callisher v. Bischoffsheim, L. R. 5 Q. B. 449; Seward v. Mitchell, 1 Cold. (Tenn.) 87. Of course the reply is obvious that the parties never intend to make any such contract. But neither did they so intend in Collen v. Wright. To say that they did is a fiction, and has been so called. See dissenting opinion of Cockburn, C. J., Collen v. Wright, supra; HUFFCUT, AGENCY, 231. If it is a fiction, there is no reason why a court may not apply it as bravely to the one case as to the other, to Oliver v. The Bank of England as bravely as to Collen v. Wright.

Obviously the fiction of warranty confuses the matter. It is desirable to ascertain clearly the real basis on which these cases must rest. Since the case of Peek v. Derry in the House of Lords the only ground on which they can be put is that of business convenience and necessity. That case decided that one who suffers by acting in reliance on a merely negligent misrepresentation cannot recover. Peek v. Derry, L. R. 14 App. Cas. 337. A fortiori he could not recover on a non-negligent misrepresentation. We therefore have to recognize that in England the Collen v. Wright cases are an exception to Peek v. Derry, in that they allow a recovery where an agent makes a misrepresentation as to his authority. The ground of business necessity suggested as a basis for the exception is a very strong one. Business has to be conducted through agents. The agent usually can investigate his authority and find out with considerable certainty whether or not it exists in a particular case, while the person with whom he deals very seldom can. As a consequence it is, as a matter of fact, the custom of business men to take agents largely upon trust. There are peculiar reasons therefore why an agent should be viewed differently from others and held liable for even an innocent and non-negligent misrepresentation as to a fact which it is especially within his province to know, and which others as a practical matter are unable to investigate. It is both just and necessary for the safe conduct of business. These arguments would seem ample to justify an exception with regard to these cases. The exception being granted, it of course includes Oliver v. The Bank of England. That case appears to be rightly decided.

It is interesting to note that where the agent acquaints the person with whom he deals of the doubt as to his authority he is not held liable. Lilly v. Smales, [1892] 1 Q. B. 456.

UNRECORDED TRANSFER OF STOCK. - A recent article discusses the respective rights of the creditor who has attached the stock of his debtor upon the books of the corporation and the prior purchaser who has failed to obtain a transfer upon the books. Certificates of Stock: Relative Rights of an Attachment Creditor and a Prior Unrecorded Transferee, by L. L. Leonard, 55 Central L. J. 243 (Sept. 26, 1902). The author considers the creditor entitled to preference on strict legal principle, but admits that the practical demands of business will ultimately cause the transferee to be given priority. Mr. Leonard's argument seems somewhat weakened by the fact that his cases are often inaccurately cited; in several instances also they do not turn on the point for which he cites them.

It seems conceded that apart from the usual regulation by statute or by the charter or the by-laws of the corporation the legal title to stock passes to the transferee by the act of sale and the creditor of the transferor can thereafter have no claim upon it. Boston, etc., Association v. Cory, 129 Mass. 435; Lowell, TRANSFER OF STOCK, § 80. Statutory or charter provisions are generally found, however, which provide that stock shall be transferable only on the

books of the corporation. As to the effect of these provisions, the decisions are in conflict. One view is that they apply only to the relations between the corporation and the stockholders. Under this construction they cannot affect the question under discussion, and consequently the transferee prevails. See Mount Holly, etc., Co. v. Ferree, 17 N. J. Eq. 117. A second construction adopted by some courts gives them an effect similar to that of recording acts. This leaves out of account the consideration that the books are not open to public inspection and that hence there can be no analogy between registering a deed and recording a transfer of stock upon the books. See Noyes v. Spaulding, 27 Vt. 420. Most jurisdictions hold a third view, namely, that the legal title remains in the vendor, and that the vendee has only an equitable interest which may be extinguished by a sale to an innocent purchaser. Otis v. Gardner, 105 III. 436. In these jurisdictions the rights of the creditor and the transferee are often made to depend upon whether an attachment creditor is treated as a purchaser for value or as a volunteer. It would seem, however, that the general custom of business should be the determining factor. In the case of stock the indicia of ownership are in the person who has the certificate, not in the person in whose name the stock is registered. Banks advance money and buyers pay the price upon delivery of the certificates without registration. To require that the transfer should be registered before the vendee can have a secure title would unsettle the titles to a large part of existing stock. It cannot be too strongly urged that courts should recognize conditions as they exist in the business world, and apply legal principles that are in harmony with them, rather than build up from analogy theories which do not take into account the customs and needs of business men. It is gratifying to note that the courts in the more important commercial states favor the transferee, and that in many states where the courts have committed themselves to an opinion preferring the creditor, the transferee is now protected by statute. Scott v. Pequonnock Nat. Bank, 15 Fed. Rep. 494; Broadway Bank v. McElrath, 13 N. J. Eq. 24; Smith v. American Coal Co., 7 Lans. (N. Y.) 317; Finney's Appeal, 59 Pa. St. 398; Mass. R. L. (1902), c. 109, § 37.

THE ADMINISTRATION OF DEPENDENCIES: A Study of the Evolution of the Federal Empire, with Special Reference to American Colonial Problems. By Alpheus H. Snow. New York and London G. P. Putnam's Sons, The Knickerbocker Press. 1902. pp. vi, 619. 8vo.

The American colonial problem has now passed beyond its violently controversial stage. For good or ill this republic has undertaken the government of distant dependent peoples. The question is no longer as to the wisdom of the adoption of such a course or of the possibility of escape from it; for the burden has already been assumed. The problem now before us therefore involves primarily a search for the true principles of colonial government, and a consideration of methods and means for their proper application, Its solution will not merely require infinite patience and fortitude in practical affairs, but will perhaps even more urgently demand a thorough and vigorous understanding of the nature of our now American Empire and of the relations of its constituent States one with another, with their correlative rights and duties. Without this, ultimate success can hardly be attained. To the study of this all-important problem the present work is a timely and notable contribution.

The chief aim of the book is to establish the proposition that the American Union and the peoples and lands of its dependencies constitute a Federal Empire in which the American Union, itself a Federal State, governed in its own affairs under a written constitution, is the Imperial or Parent State, standing in a federal or contractual relation with the dependent or colonial states of the Empire and ruling them under an unwritten constitution, which in the affairs of the Empire is above the constitution and laws of the Imperial State though in the main derived from them. On this theory, the dependencies are regarded as actual states over which the Imperial State has neither unconditional nor

unlimited power, but only a power of disposition, that is, a power of superintendence and of adjudication upon the interests of the whole Empire according to its unwritten constitution. This power is accompanied by the power to execute such adjudications by all needful rules and regulations. This principle of Federal Empire the author believes to have been adopted by that little understood article of the Constitution which gives Congress power "to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States."

The proof of this position requires, and receives at the hand of the author, a most thorough investigation of the origin and history of this clause and of the principle which it is said to establish. This in turn involves a careful inquiry into the theory and practice of the administration of the American Colonies by England from their inception, and leads to a thorough study of the issues of the American Revolution and of the underlying principles then at stake. In this study the gradual growth of the idea of Federal Empire is traced with much detail as it slowly takes form and finally culminates in the adoption of this clause of the constitution and its subsequent interpretation by the First Congress in its ordinance for the administration of the Northwest Territory as a dependency of a Federal Empire.

The development of the idea is then followed down to the present time in American, British, and Continental theory and practice. The history of the idea in this country is especially noteworthy as its growth is traced through the various expressions of legislative and judicial opinion to the final recognition, as the author believes, of the purposes of the framers of the constitution by the majority of the United States Supreme Court in the recent Insular Tariff Cases. Thus, aside from its main object of suggesting a solution of the colonial problem, this book becomes a most valuable study of the evolution of the Federal Empire as a predominating form of political organism.

As a work on theoretical government or constitutional law, this discussion can perhaps hardly be said to be a finality. It is rather a preliminary study which will perform a vital service in clarifying thought and indicating general principles. Many of its conclusions may be open to criticism, some perhaps are unsound; but from the earnest, practical lessons that are drawn for our guidance in colonial administration there can be no dissent. For the Federal principle, as here declared, is shown to give rise to a trust relation between the Imperial State and its dependencies, which imposes certain definite Imperial obligations upon the governing state, these being fully and forcibly set forth in the final chapter. The book surely points in the right direction and with its enthusiastic scholarship will inspire further effort in the development of what seems to be the true theory of our government. It can emphatically be said to deserve a prominent place among the thoughtful works of the year as one whose influence ought to prove permanent and especially stimulating.

W. H. H.

A TREATISE ON THE LAW OF INTERCORPORATE RELATIONS. By Walter Chadwick Noyes. Judge of the Court of Common Pleas in Connecticut. Boston Little, Brown, and Company. 1902. pp. xlviii, 703. 8vo. Any good work on the subject of the great trade combinations of to-day will be welcomed at this time. For to a lack of sufficient knowledge on this subject may be attributed the hesitancy of some courts and legislatures and the precipitancy of others when questions involving such combinations have been presented to them. The recent work from the pen of Judge Noyes of Connecticut is a very excellent contribution to the legal learning on this important topic. It is doubly opportune, as it deals not only with trade combinations, but with their most controverted feature, namely, intercorporate relations. The actual trust, the earliest form of the modern trade combination, passed out of existence after the case of People v. North Sugar Refining Co., 121 N. Y. 582 (1890). The pool or partnership of several corporations could not survive the case of Addyston Pipe Co. v. United States, 175 U. S. 211 (1899), in which it was

declared illegal. Since a corporation may legally be formed for the purpose of erecting and maintaining any number of different plants, there seems to be no serious question as to the legal right of an existing corporation to purchase outright the plants of others and thus effect an organization similar to that of the Standard Oil Company or the United States Steel Corporation. See Trenton Potteries v. Oliphant, 58 N. J. Eq. 507. The controversy as to the legality of trade combinations is, therefore, mainly reduced at the present time to a consideration of holding corporations and other corporate bodies in which the interests of separate corporations are united, the constituent bodies continuing to exist, in other words, to a consideration of intercorporate relations; and to this topic the present work is chiefly addressed.

Judge Noyes divides his subject into five main heads as follows: I. Consolidation of Corporations; II. Corporate Sales; III. Corporate Leases; IV. Corporate Stockholding and Control; V. Combination of Corporations. The treatment of the first three topics is lucid and concise but is not marked by any great independence of discussion. The chief value of the work will be found in the able manner in which the fourth and fifth topics are handled. These are the divisions of the subject which are at present most troublesome and obscure, and these the author properly elaborates in greatest detail. Other writers on the subject have generally made conspiracy the test of the validity of all combinations. This test, however, generally proves confusing, and in the last analysis reduces itself to a question of public policy. In the present work the problem is greatly clarified by being stated in its lowest terms at the outset: "The theory of this treatise is that the validity of a combination depends upon considerations of public policy." Thus simplified, the subject is handled in a vigorous and scholarly manner. The argument is concise, yet sufficiently elaborate. The leading cases and the various anti-trust statutes, state and federal, are analyzed, and rules of public policy based on them are deduced. The principles involved receive a keen, judicial treatment, and the whole work can well be said to mark a distinct step in the progress of thought on the subject.

The indexing and the mechanical arrangement of the subject matter are excellent. The citation of cases is complete, and a full summary of all the anti-trust laws is printed in the foot-notes.

JURISPRUDENCE, or The Theory of the Law. By John W. Salmond. London: Stevens & Haynes. 1902. pp. xv, 673. 8vo.

The word "Jurisprudence" has such a tremendous significance that most writers upon the subject have failed through trying to include too much in their treatment of it. Mr. Salmond, after noting that the term may mean either the science of law in general, including civil, international, and natural law, the science of civil law, or the science of the first principles of civil law, confines himself to the last, and therein finds abundant material for analysis and discussion. He has attempted a great work and has achieved a great success. Though the reader may not always agree with the text, he must acknowledge that it is the work of a bold and original thinker and forceful writer.

The book has so many excellences that it is difficult for one to choose any for particular praise. Perhaps the most conspicuous qualities are completeness, balance, and compactness. Nothing is omitted, nothing slighted, and nothing unduly extenuated. The defects of the work for of course it is not wholly perfect- are rather the results of hasty judgments than of errors in construction or style. The most noticeable are a curious confusion of prescription with statutes of limitation; an abortive chapter on the divisions of the law (perhaps a hopeless subject); and a sustained use of the term "conclusive presumption. It is astonishing to find a modern writer using the term as though it meant something. When A is conclusively presumed from B, then it is the latter that is important as an ultimate fact, and the former is in reality surplusage.

Of the individual chapters that entitled "Intention and Negligence " appears to be the best. Mr. Salmond defines the former as "the foreknowledge of an act coupled with the desire of it," these being the cause of it. Negligence, he says, consists in the mental attitude of undue indifference with respect to one's conduct and its consequences. The element of desire determines to his mind the dividing line between intention and negligence. No amount of foreknowledge of or advertence to results can make an act intentional if those results were not desired. Bravely he fights for his doctrines. Willful negligence does exist, he asserts. It is indifference. Simple negligence, on the other hand, is mere inadvertence. In this he goes farther than many will follow, maintaining, for example, that damage caused by one who drives furiously through a crowd, perceiving the danger but utterly regardless of consequences, is the result of a willfully negligent but not intentional act.

In point of arrangement the book leaves little to be desired. In construction it contains many excellent novelties. Careful summaries of all the chapters give casual readers a feeling of comfortable assurance that they will not Overlook anything of importance, and equally frequent lists of selected references afford students convenient opportunities for extending their knowledge upon points of peculiar interest or difficulty.

MASON ON HIGHWAYS, containing the New York Highway Law and all Constitutional and General Statutory Provisions relating to Highways; Highway Officers, their Powers and Duties, including the Good Roads Law of 1898 and 1901, all as amended to the Session of 1903; with Annotations and Forms. By Herbert Delavan Mason. Albany: Banks and Company. 1902. pp. xxxi, 322. 8vo.

The scope of this little volume is well indicated by the complete title. The author has set himself the limited task of re-stating, with helpful annotations, the New York statutory and constitutional provisions concerning highways, and of preparing such forms as may be needed by all who have occasion to act under these laws.

In the first part of the work he has reprinted the New York Highway Law of 1890 as amended to 1903. Under each section there are careful annotations comprising extensive cross-references, references to the prior enactments which form the basis of the present law, numerous references to other acts such as the Town Law and the County Law, and, finally, a brief statement of the substance of all New York decisions bearing on the subject matter of the section considered. It may be suggested that the value of the work as a reference manual would perhaps have been enhanced if the somewhat heterogeneous matter embraced in these citations had been classified under appropriate headings. In the next part of the book are found, with only occasional references or citations by the author, such provisions of the State Constitution, the County Law, and the Town Law, as relate to highways, together with a few miscellaneous enactments on the same subject.

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The third part of the work should prove of considerable usefulness, especially to the many public officers acting under the highway laws. Here are gathered, under references to the statutory provisions in connection with which they are to be used, one hundred and twenty-four forms prepared by the author, sufficiency of many of them, as he states, having already been tested in the courts. The book is made complete by a table of cases cited, a general index, and an index to the forms.